Russell Abrutyn

Abrutyn Law PLLC

3765 12 Mile Road

Berkley, MI 48072

Friday, November 19, 2010

Not all cocaine base convictions are aggravated felonies

Matter of Aguirre, 2010 WL 4509738, A073-808-366 (BIA Oct. 29, 2010) (Memphis).

The LPR was convicted of possessing cocaine base.  The IJ found that it was an aggravated felony barring him from cancellation of removal.

Sidestepping the LPR's Federal First Offender Act argument, the BIA remanded because not all convictions for possessing cocaine base are federal felonies.  21 USC s 844(a); Lopez v. Gonzales, 549 US 47 (2006).  Because the record does not show that he possessed more than five grams of cocaine base, the BIA held that the state conviction was analogous to a federal misdemeanor.  The BIA remanded for consideration of his application for cancellation of removal.

BIA affirms that ICE bears the burden in Pickering-type case

Matter of Chmura, 2010 WL 4500863, A035-957-832 (BIA Oct. 28, 2010) (Detroit).  More information about the noncitizen is available at

The LPR was ordered removed for having been convicted of multiple CIMTs.  She did not appeal but filed a timely motion to reopen after one of her convictions were vacated pursuant to Padilla v. Kentucky, 130 S. Ct. 1473 (2010).  The IJ denied the motion, asserting that the LPR did not prove that the convictions were vacated under Padilla as opposed to a rehabilitative statute or to avoid removal.

On appeal, the BIA reversed.  Citing to the Sixth Circuit's decision in Barakat v. Holder,, the BIA held that ICE bore the burden of proving that the convictions were vacated for an improper purpose.  The noncitizen met her burden of proof by submitting an order from a court of competent jurisdiction vacating the conviction.  Doing so shifts the burden to ICE to establish the basis for the state court's action.  The Board applied Barakat equally to motions to reopen and motions to remand.

The BIA remanded to allow ICE to attempt to meet its burden.

Substantial compliance with Lozada supports appeal and remand

Matter of Morales-Bribiesca, 2010 WL 4500889, A047-770-293 (BIA Oct. 18, 2010) (Cleveland).

The noncitizen's prior attorney, without consulting with the noncitizen, conceded removability as a smuggler.  Upon learning that she would be ineligible for cancellation of removal, she tried to amend her pleadings.  The IJ denied the request and ordered her removed. 

On appeal, the noncitizen and her new attorney alleged ineffective assistance of counsel. Although she did not include a fee agreement or lodge a disciplinary complaint against the prior counsel, she included that attorney's affidavit accepting responsibility for conceding removability without first consulting with noncitizen.

Finding the representation "egregious," the BIA found that the attorney's concession was not binding on the noncitizen.  The BIA remanded for a hearing on the noncitizen's removability and eligibility for relief from removal.

Tuesday, November 9, 2010

Six minutes late, a dollar short

Camaj v. Holder, (published, November 8, 2010).

The court upheld the denial of a motion to reopen an in absentia order, finding that personal service of the hearing notice was not practicable where the alien was in Detroit and the judge was in Chicago.  The court found the use of certified mail sufficient.

The alien arrived at the hearing in question 40 minutes late, only six minutes after entry of the in absentia order.  While not explicitly stated, it is likely that the alien was late because the hearing location had changed and the new address may not have been brought to his attention.

Had it been able to do so, the court would have reopened on the basis that the alien was only six minutes late and deportation is too harsh a penalty for such tardiness.  However, his attorney below did not exhaust that argument, raising it for the first time on the petition for review.  The court also made a point of mentioning that the attorney did not show that the Camaj had a meritorious claim for relief.  The court bemoaned the prevalence of "inadequate lawyering" but felt constrained to do anything about it on a less than perfect record.

Pending petition for review plus stay of removal equals Immigration Court Bond Jurisdiction

Cuello v. Adduci, 2010 WL 4226688 (E.D. Mich. Oct. 21, 2010).

In this district court decision, Judge Battani adopted the reasoning expressed by the Ninth Circuit in the Prieto-Romero v. Clark, 534 F.3d 1053 (9th Cir. 2008), line of cases.  See also Bejjani v. INS, 271 F.3d 670, 689 (6th Cir. 2001).  Where an alien is subject to an administratively final order of removal, timely files a petition for review with the circuit court, and receives a stay of removal from that court, the alien's "removal period" (INA s 241(a)(1)(B)) has not commenced.  Therefore, detention under section 241(a) is not authorized. 

Therefore, if detention is not pursuant to section 241, it must be pursuant to section 236(a).  The alien is therefore entitled to a bond hearing in Immigration Court while the petition for review is pending. 

In this case, the alien was not subject to mandatory detention under 236(c), so it is unclear if there would be bond jurisdiction if that section applied.  The Ninth Circuit has found that there would be following the entry of an administratively final order of removal.